The Appellant claimed that she had been discriminated against by the Respondent hair salon on the grounds of sex/maternity. She claimed that the Respondent had engaged in a course of discriminatory conduct consisting of various matters from May 2015 until she resigned and claimed constructive dismissal in January 2017. These included two particular matters in 2015 (her treatment in relation to a ‘trade test’ in May 2015, and ‘cold-shouldering’ treatment by the salon’s principal in the period from May to October 2015). The Employment Tribunal found that the Appellant had established a prima facie case of sex/maternity discrimination in relation to these two matters, but the Tribunal did not go on to decide whether they were acts of sex discrimination. This was because the Tribunal decided that there was no need to do so as any claim relating to these matters would be out of time: the Tribunal found that there had been no course of discriminatory conduct which had extended into the primary limitation period, and that it was not just and equitable to extend time for a discrimination claim.
The Tribunal also found that the Appellant had been constructively dismissed, for the purposes of a claim of unfair dismissal, by reason of a course of conduct which included the two matters and which culminated in a ‘last straw’ incident in January 2017.
The EAT found that the ET had erred in law in failing to consider whether the constructive dismissal was itself discriminatory. In order to do so, the ET should have decided (1) whether the two matters in 2015 were acts of sex/maternity discrimination and, (2) if so, whether they sufficiently influenced the constructive dismissal to mean that the constructive dismissal itself amounted to sex discrimination. The fact that the last straw was not itself discriminatory did not automatically mean that the constructive dismissal was not discriminatory. If the constructive dismissal was discriminatory, then the claim for discrimination would be in time, even though the events that rendered the constructive dismissal discriminatory were themselves outside the primary limitation period.
The case was remitted to the same Employment Tribunal to determine whether the constructive dismissal was unlawful sex discrimination.
Citations:
[2021] UKEAT 0038 – 20 – 0104
Links:
Jurisdiction:
England and Wales
Employment
Updated: 04 December 2022; Ref: scu.661709